South Florida Criminal Lawyers Blog

Let's catch up on some of the news:

George Zimmerman has waived his right to a pre-trial "Stand Your Ground" hearing.

We've already discussed the legal strength of the "Stand Your Ground" defense in Mr. Zimmerman's case. He need only prove by a preponderance of the evidence that he acted justifiably, which is a far lower burden than that required by the State to prove Mr. Zimmerman's guilt. The State has little or no evidence to contradict Mr. Zimmerman's claim that he reasonably feared for his life and that Trayvon Martin initiated physical contact. The State is presumably alleging a theory of "provocation" that doesn't include initiating physical contact (as the State has no evidence--either direct or circumstantial--that Mr. Zimmerman initiated physical contact), which is totally unprecedented, and which contradicts the plain language of the statute. What's more, even if the State could convince the judge that Mr. Zimmerman "provoked" the confrontation, the State has no evidence to contradict the statutory exception, which allows an individual who "provokes" a conflict to justifiably use deadly force, if the provocateur reasonably fears for his life and has exhausted all means of escape.

However, we didn't discuss the litigation strategy of invoking a "Stand Your Ground" defense pre-trial, nor did we discuss the inherent political considerations that Mr. Zimmerman must make.

Typically, a defendant in the shoes of Mr. Zimmerman would jump at the opportunity to argue a "Stand Your Ground" motion pre-trial. However, due to the intense national interest in this case, Mr. Zimmerman must keep some political considerations in mind when deciding how to make his argument. The judge, while bound to follow the law, will naturally feel profound pressure to allow the case to go to a jury. Thus, despite the legal strength of Mr. Zimmerman's argument, there is a very real chance that the judge will rule against Mr. Zimmerman, so as to allow the jury to decide the issue of guilt.

Should the judge rule against Mr. Zimmerman pre-trial, the news media will vigorously report the ruling, which will inevitably taint the jury pool. Although the attorneys will do their best to find jurors who know as little about the case as possible, it is never a certainty whether a juror (or some jurors) know more about the case than they admit. It is, perhaps, too great a risk for Mr. Zimmerman to pick a jury from a jury pool that knows that a judge ruled against Mr. Zimmerman on the "Stand Your Ground" issue.

Mr. Zimmerman's attorney has suggested that he might contemplate arguing the "Stand Your Ground" motion during the trial, outside the presence of the jury. Presumably, Mr. Zimmerman will appear to the jury pool as wanting to have a jury decide his case, while secretly attempting to have the case dismissed without the jury's input. If Mr. Zimmerman loses the motion, the jury will not know of it. If Mr. Zimmerman wins the motion, the jury will be dismissed before deliberations.

Of course, this raises the question of whether it is permissible for Mr. Zimmerman to argue a "Stand Your Ground" motion during the course of the trial, as opposed to before the trial. It is not unheard of for attorneys to argue dispositive suppression motions during the course of a trial. However, this only occurs with the prior approval of the Court. More importantly, there is no precedent for arguing a "Stand Your Ground" motion during the course of a trial, which is certainly much different from a suppression motion.

The "Stand Your Ground" statute itself doesn't address the procedure of how a court is to consider a "Stand Your Ground" motion. In Dennis v. State, the Florida Supreme Court stated: "we conclude that the plain language of section 776.032 grants defendants a substantive right to assert immunity from prosecution and to avoid being subjected to trial." However, the Court did not confront the question of whether a defendant must assert a "Stand Your Ground" motion prior to the start of the trial.

Nevertheless, the Court did hold that the proper vehicle for asserting a "Stand Your Ground" claim is under Florida Rule of Criminal Procedure 3.190(b), as opposed to 3.190(c)(4). Rule 3.190(b) doesn't address when a motion must be filed. However, Rule 3.190(c) states:

"Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided shall be considered waived."

Clearly, although the proper vehicle for a "Stand Your Ground" motion is Rule 3.190(b), it is Rule 3.190(c) that governs the timeliness of the motion. Thus, if Mr. Zimmerman wants his motion heard during trial, he likely must seek the Court's permission, which he has not yet done. Rule 3.190(c)'s exception for "objections based on fundamental grounds," is a reference to objections based upon a law's unconstitutionality, and thus doesn't apply (See Potts v. State, 526 So.2d 104). Mr. Zimmerman cannot shoe-horn his argument into a 3.190(c)(4) motion, which can be heard at any time, because the State will simply traverse that there are material facts in dispute, requiring the Court to deny the motion. Mr. Zimmerman might shoe-horn his argument into a J.O.A. argument, but then he loses the burden advantage that a "Stand Your Ground" motion provides a defendant. In a J.O.A. argument, the Court must weigh all of the evidence in the light most favorable to the State.

MIAMI-DADE MARIJUANA CASE GOES TO THE SUPREME COURT OF THE UNITED STATES

After the United States Supreme Court handed down its ruling in United States v. Jones, I observed that the holding had "the potential to impact prosecutions in South Florida, as it provides an additional theory through which Florida defense attorneys may attempt to suppress evidence." Little did I know that the Court's very next 4th Amendment case to share in the Jones lineage would come from South Florida!

In Florida v. Jardines, the United States Supreme Court, in a 5-4 decision (Scalia, Thomas, Sotomayor, Kagan, Ginsburg) suppressed evidence in violation of the 4th Amendment, based upon the theory that law enforcement officers impermissibly trespassed upon the Defendant's property interests. This new case provides an important precedent through which Florida defense attorneys may challenge police searches and seizures.

The facts of the case are rather straightforward. Police officers, acting without a warrant, approached the defendant's home with a drug sniffing canine. As the dog approached the home, the dog alerted to its handler that it detected an odor of contraband. Based upon the alert, the officers received a search warrant for the home, seized marijuana, and charged the defendant.

The Court held that the police exceeded the implied license to approach the front door, because they approached the front door with a drug sniffing canine, with the intent of gathering incriminating evidence. The Court stated: "The scope of a license-- express or implied--is limited not only to a particular area but also to a specific purpose." While the Court acknowledged that a police officer may approach a home to conduct a "knock and talk," as that is something that any ordinary citizen may do, the Court stated: "introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that."

Justices Kagan wrote a concurring opinion, in which Justices Ginsburg and Sotomayor joined, in which Kagan stated that she also would have ruled that the canine sniff of the front door also violated a reasonable expectation of privacy. Justice Kagan analogized the facts of the case to a situation where a police officer approaches the front door of a home, and then peers into the home using "super-high-powered binoculars," which allow the officer to see intimate details of what is occurring in the home. Kagan wrote: "That case is this case in every way that matters. Here, police officers came to Joelis Jardines' door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted."

This analogy seems wrong. In the hypothetical, the police use binoculars to peer inside the home, and thus perceive "intimacies...sensibly thought protected from disclosure." But in this case, the police used a dog to sniff an odor of contraband wafting outside of the home, which did not allow the police to perceive any "intimacies...sensibly thought protected from disclosure." Surely that distinction is eminently relevant to "what matters" in the case, and whether any privacy rights were violated.

Justice Alito wrote a dissenting opinion, in which Justices Alito, Roberts, Kennedy, and Breyer joined. Alito argued that (1) no trespass occurred; and that (2) no "reasonable expectation of privacy" was violated. As to the former argument, Alito scathingly stated: "in the entire body of common-law decisions, the Court has not found a single case holding that a visitor to the front door of a home commits a trespass if the visitor is accompanied by a dog on a leash. On the contrary, the common law allowed even unleashed dogs to wander on private property without committing a trespass."

The dissent also observed: "The Court offers no meaningful way of distinguishing the 'objective purpose' of a 'knock and talk' from the 'objective purpose' of [the police] conduct here." This is an important observation. Under the majority's holding, if an officer were to approach a home with a drug sniffing canine, with the intent to "knock and talk," and the dog alerted prior to the officer reaching the door, the officer would be precluded from swearing out a probable cause affidavit in support of a warrant, based solely upon the dog's alert. However, what would happen if an officer were to approach a home without a drug sniffing canine, with the intent to "knock and talk," but before reaching the door, the officer smelled marijuana coming from the house? Would that serve as a proper basis for a search warrant, simply because there was no dog?

Ultimately, the Supreme Court's decision is an interesting case, which provides a Boca Raton criminal defense attorney a new avenue to challenge police searches.

A Florida jury acquitted Casey Anthony of First Degree Murder and Aggravated Manslaughter of her two-year-old daughter, Caylee, after the prosecution presented a mountain of circumstantial evidence that all but spelled out Casey Anthony's guilt. Now that some of the jurors have spoken, it is apparent that defense attorney Jose Baez scored significant points with his opening statement, in which he promised to show that Caylee died as a result of drowning; that George Anthony, the victim's grandfather, was responsible for the drowning; that George Anthony molested Casey Anthony as a child; that George Anthony disposed of Caylee's body; that George Anthony was responsible for the death and cover-up of Caylee's death; and that George Anthony was letting his own daughter take the fall in a death penalty murder trial.

After making these bold promises, Jose Baez was unable to follow through with any evidence to back up his opening statement. The jury heard no evidence of a drowning; no evidence that George Anthony molested Casey Anthony; no evidence that George Anthony covered up a crime; no evidence that George Anthony was responsible for anything. Nevertheless, the jury foreman confirmed to Fox News' Greta Van Susteren that George Anthony was, in the minds of the jurors, "in the mix" as the possible murderer. Russell Hueckler, an alternate juror, told CBS News that "the family knows a lot more than what came out at trial." Jennifer Ford, juror #3, also was suspicious of George Anthony, telling ABC News, "I don't know if he had anything to do with it, but I think he was there."

How was it possible that members of the jury reached the conclusion that George Anthony was likely involved? Perhaps the question is best answered by Dom Cobb, the protagonist in the movie Inception, who explains: "What is the most resilient parasite? An idea. Resilient, highly contagious. Once an idea has taken hold of the brain, it is almost impossible to eradicate. An idea that is fully formed, fully understood--that sticks."

Jose Baez violated a fundamental canon of trial practice: he promised something to the jury that he did not provide. In doing so, he risked losing the greatest asset a trial attorney possesses: his credibility with the jury. However, in the process of Mr. Baez's opening statement, he planted a seed in the minds of the jury that reframed the jury's perspective. From the moment after Mr. Baez's opening statement, the jury could not view the evidence without looking at the evidence from the perspective that George Anthony might have committed the crime. It was an idea that, with or without corroboration, had taken hold and was impossible to eradicate.

Indeed, Mr. Baez's opening statement highlights the overwhelming importance of a defense attorney's opening statement. From the moment the jury panel walks into the courtroom for voir dire, the perspective of the jury is that the defendant likely did something wrong, or else the defendant wouldn't be charged with a crime. The opening statement, however, provides the attorney with an opportunity to reposition the perspective of the the jurors and provide them with a first impression that will redefine the evidence presented at trial.

This is not to suggest that attorney's should mislead jurors or make promises that the attorney cannot keep. While the Casey Anthony jury felt that Mr. Baez maintained credibility in the face of making promises he did not keep, few juries will be so kind. What's more, the "good faith rule" requires an attorney to have a good faith belief that what the attorney says in opening statement will be shown at trial.

In the Casey Anthony case, this would have required a good faith belief that Casey Anthony would testify as to the defense theory of the case. In Spaziano v. State (2d DCA, 1983), the Second District Court of Appeal held that: "an attorney who in good faith expects his client to testify and gives an opening statement on the basis of that expectation, does not commit a wrongful act if he and/or his client, after hearing the state's case against him, decides to exercise his right to remain silent. A person on trial often makes tactical changes in his defense as the trial progresses. Absent improper conduct on the part of the attorney or the defendant, the right to make these changes should not be prohibited."

For all the criticism that Mr. Baez received in the press and from fellow members of the defense bar, Mr. Baez achieved what all seasoned trial attorneys seek to accomplish: inception.